Rights, a term deeply rooted in the modern political culture and an essential part of the democratic ethos, refers to the rules that govern the relationship among citizens and between the citizens and the state. A modifier is often attached to the term, depending on its use. For example, we frequently speak of citizen rights, individual rights, civil rights, human rights, political rights, economic rights, social rights and collective rights, among others. Rights are also often associated with the concept of freedom: individual, political, economic and social freedom, etc.

In a world organized around nation states, these terms refer to the state’s role as guarantor of rights and as the entity that sets social rules that are applicable to everyone equally, including the powerful, whether they are part of the dominant social sector or officials or administrators of the state. This means that each state is obligated to codify the citizens’ rights that apply in its territory, based on its particular political culture, aspirations and historical experience. Each democratic state, therefore, is expected to have internal judicial mechanisms to attend to violations of rights and to address grievances. In Puerto Rico, for example, any allegation of a violation of rights, whether by a civil entity or an agent of the state, can only be resolved by the Commonwealth of Puerto Rico courts. (Puerto Rico’s particular juridical relationship of subordination to the United States, however, allows some cases to be taken on appeal to U.S. courts.) Therefore, there are no supranational institutions with the authority to pass judgment on the content of each nation’s laws. In other words, the international democratic norms currently in place stipulate that the judicial institutions of each nation state are called on to pass judgment on issues of civil rights involving their citizens.

Despite the universal recognition that the basic political structure in the modern world is the nation state, since the middle of the past century the principle that human beings have natural (inalienable) rights that all states are obligated to respect has proliferated in the world. In other words, no state can create laws that violate the natural-born rights of any human being, or impose policies that diminish those rights. Although there are no supranational mechanisms to pass judgment on the internal laws and policies of each state based on the universal principles of human rights (or to correct cases of systematic violations), international institutions have been developed for the purpose of addressing specific violations, under the mantle of so-called crimes against humanity. In 1946, at the end of World War II, with the creation of the United Nations (U.N.), the idea that states could be penalized by the international community for their repressive internal policies began to spread throughout the planet. Even more important was the idea that the persons responsible for committing and ordering crimes while holding government office could not hide behind the claim that their actions were immune from later judgment when done in the name of the state. This norm of impunity had prevailed in the international world since the 17th century, but it came under new scrutiny due to the abuses committed during World War II, particularly by Japan and Germany. In the post-war years, a new principle of individual responsibility served as the juridical base for the so-called Nuremburg and Tokyo Trials, organized by the winning powers in the war to judge civil and military officials accused of having committed atrocities prohibited by moral and juridical norms. Some of the accused were executed and others were imprisoned.

Later, international institutions were established under the U.N. —such as the International Court of Justice located at the Hague in the Netherlands— to attend to contentious issues between states and thus prevent them from resorting to violence to resolve their differences. More recently, as a follow up to the juridical principles that legitimized the Nuremburg (Germany) and Tokyo (Japan) Trials at the end of World War II, a permanent international court was created to hear cases of crimes against humanity perpetrated by individuals while holding high office in their nation states. This includes officials or military officers of any country whose official or unofficial actions in pursuit of national (or personal) interests have broken the bounds of international consensus morals. It is noteworthy that the United States and Israel are the only countries that have refused to submit themselves to the jurisdiction of this court. The government of the United States, under George W. Bush, alluded to the theory of exceptionalism to justify its exclusion. This theory states that the country, by representing an exceptional culture in terms of its values and political institutions, and by constituting today the greatest economic and military power in the world (“leader of the free world”) cannot be judged (including its political and military leaders) by anyone, for any of its actions, or for violations of human values that apply to the rest of the community of nations.

There have also been cases that have countered the idea of official impunity. Until recently, when a despotic head of state was deposed by a coup, a social revolution or the restoration of democracy, he took asylum in another country, where he was granted immunity and could therefore not be questioned for his crimes. This pattern changed in the 1990s when a Spanish prosecutor accused Chilean dictator Augusto Pinochet of crimes against humanity and a British court used the accusation to arrest the general. This case showed that any person, even when serving the state or when head of state, can be held personally responsible in court for having committed or ordered atrocities, even if the events took place in another country. This precedent has created a new international setting of judicial responsibility for crimes against humanity.

Inalienable right to self-determination

The UN also recognizes the inalienable collective right to self-determination as the basis for the universal rejection of colonialism, the historical experience of a more powerful state appropriating a weaker one through direct conquest of territory or the imposition of hegemonic political and economic relationships. This broad anti-imperialist sentiment was based on a general belief that the world wars of the 20th century originated in the desire for imperialist expansion that had dominated the political thinking of the most powerful nation states. This turn in international thinking not only delegitimized the historical practices of imperialism, but also dismantled European empires through decolonization of territories around the world. Most of these former colonies have become sovereign nation states. To further this goal, the U.N. created a permanent committee in its General Assembly (the Decolonization Committee) with the task of addressing those cases of colonial territories that remained under hegemonic imperial control. In 1953, the United States presented a report to this committee about the case of Puerto Rico, arguing that the creation of the commonwealth a year earlier (1952) had put an end to the prior colonial relationship by granting Puerto Rico the right to organize its own government. The report argued that the authorization to establish the commonwealth (self government) with its own Constitution met the formal requirements for decolonization adopted by the U.N., and therefore the United States did not have to continue submitting reports to the committee about the case of Puerto Rico. Since then, the committee has kept the case on its agenda (although it has not demanded more reports from the United States), which has made it a recurring political arena in the international struggle between proponents of formal sovereignty for Puerto Rico and defenders of the official position of the United States, supported by both of the major political parties in Puerto Rico.

It is important to reiterate that self-determination is not an individual right but rather a collective right. It is not a right of individual people, but rather a community with a shared history, its own cultural tradition and a particular territory. The political-judicial configuration of the community (its particular political form) is not relevant for exercising the right to self-determination. On the contrary, the affirmation of this fundamental right is more important and urgent when the community does not enjoy formal recognition of its sovereignty. Self-determination is nothing less than a universally recognized right that is essential under modern democratic norms. The political dialogue in Puerto Rico about this collective right to free determination has been distorted by the contentious discourses of the political parties on the status issue. The right of free determination, however, continues to be one of the central pillars of the contemporary world.

Author: Roberto Gándara Sánchez
Published: September 11, 2014.

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